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The Definition of Executive and
Managerial Capacity, and Other Important Issues

1. The Qualifying Position for EB1 Multinational Executive or Manager Petition

The alien applicant should have been employed outside the U.S. in the three years preceding the EB1 Multinational Manager or Executive petition for at least one year by a same firm or corporation, and the alien applicant should be seeking to enter U.S. to continue service to that firm or organization.

The alien applicant's employment should have been outside the U.S. in a managerial or executive capacity, and with the same employer, an affiliate, or a subsidiary of the employer. 

The EB1 Multinational Manager or Executive petitioning employer should be a U.S. employer. The employer should have been doing business for at least one year, as an affiliate, a subsidiary, or as the same corporation that employed the alien applicant abroad.

An important requirement for EB-1C immigrant petition is that the intra-company transferee not only must have been an executive or manager in the foreign entity for at least one year within the preceding three years, but also must be positioned in the U.S. entity in a similar capacity. The EB-1C classification is a permanent immigrant status, thereby enabling the alien worker to work in the United States permanently. Concrete evidence is required in support of the duties are primarily executive or managerial in nature. 

When establishing the duties of a multinational executive or manager, it is advisable to provide a breakdown of the percentage of time that the alien spends or is expected to spend on each task, in order to present a clear indication that the alien is working or will work primarily in an executive or managerial capacity. An alien worker is not considered to be acting primarily in a managerial or executive capacity merely on the basis of the number of employees that the individual supervises or has supervised.

2. The Executive or Managerial Positions

The alien beneficiary must have been employed outside the U.S. for a related company for at least one year in the three years immediately preceding the transfer in a managerial or executive position, and that the employee must be coming to the U.S. company to perform work in a managerial or executive capacity. 

An individual is not considered to be acting as a manager or executive merely on the basis of the number of employees that he or she supervises, directly or indirectly. The USCIS considers the reasonable needs of the organization, the overall purpose of the company and function, and the stage of development of the company in determining whether a position qualifies. First-line supervisors generally are not considered managers or executives, without other evidence of their qualifications.

An executive or managerial title alone is insufficient if the beneficiary does not in fact perform duties which are primarily executive or managerial in nature. The duties of an alien can be viewed in light of the size of the organization and the number of employees. The smaller the organization, the greater the scrutiny directed at whether primarily executive or managerial positions can exist. 

To be an executive, you must direct the management of the organization or a major part or function of it; you need to establish the goals and policies of the organization, and receive only general supervision from executives on a higher level, from the board of directors or stockholders of the organization. 

As a manager, you must manage the organization or other part of the organization, supervise and control the work of other professional employees, and have the authority to hire and fire. 

3. The Managerial Capacity for a Multinational Manager 

For EB1-Multinational Executive or Manager petition ( EB-1C), the petitioner must establish that the beneficiary was employed abroad in a qualifying managerial or executive position for at least one out of the three years prior to his entry to the United States as a nonimmigrant to work for the same employer.

For a EB-1C case, a detailed description of job duties is the key to determine the true nature of the employment. Without the necessary information, USCIS cannot conclude that the beneficiary was employed abroad in a qualifying managerial or executive capacity.

The managerial capacity for a multinational manager means an assignment in an organization in which the employee primarily manages the organization or a department, subdivision, function, or component. To be classified as a multinational manager for EB-1C immigration purposes, the intra-company transferee must:

1) manages the organization, or a department, subdivision, function, or component of the organization;

2) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization; 

3) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization), or if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and 

4) exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisory duties unless the employees supervised are professional. 

Staffing levels are a factor in determining whether a beneficiary is acting in a managerial capacity. However, an individual is not considered to be in a managerial capacity merely on the basis of the number of employees that the individual supervises or has supervised or directs or has directed. Managerial capacity is determined by examining the totality of the specific tasks and responsibilities of employees. 

4. The Executive Capacity for a Multinational Executive

The executive capacity of a multinational executive means an assignment within an organization in which the employee primarily:

1) direct the management of the organization or a major component or function of the organization; 

2) establish the goals and policies of the organization, component, or function; 

3) exercise wide latitude in discretionary decision-making; and 

4) receive only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

Staffing levels, proportionate to the reasonable needs and development of the entity, are a factor in determining whether a beneficiary is acting in an executive capacity. However, an individual shall not be considered to be acting in an executive capacity merely on the basis of the number of employees that the individual supervises or has supervised, or directs or has directed.

5. Other Important Issues for Executive and Managerial Capacity

  • The EB1 Multinational Executives and Managers immigration category clearly creates opportunities for certain executives and managers of multinational companies to establish permanent residence in the United States. 

  • Even executives and managers of companies without existing subsidiaries in the U.S. may be able to take advantage of this category, by first establishing U.S. subsidiaries under L-1A status and then applying for the EB1C status once their subsidiary has been in business for the required one year period.

  • The definitions of managerial capacity and executive capacity include management of a function, and the beneficiary needs not to directly manage other personnel. If staffing levels are used as a factor, the reasonable needs of the organization, component or function, in light of the overall purpose and stage of development thereof, must be taken into account.

  • With regard to the length of employment abroad, the USCIS permits the foreign person to have worked for one year out of the preceding three years for the employer abroad, and the regulations do not foreclose the possibility of aggregating employment time during the preceding three-year period in order to attain the one-year requirement.

6. Consideration of Two Types of Managers - the Staff-Managing Manager and the function Manager

Those persons who are in positions that are more accurately defined as junior management will be excluded for EB-1C Multinational Manager or Executive classification. Positions defined as supervisor or persons with managerial sounding titles only would not qualify. A first line supervisor is not considered to be acting in a managerial capacity, unless the employees who are being supervised are professionals. 

There are essentially two types of managers qualifying for EB-1C Multinational Manager or Executive classification.

1) The staff-managing manager: The person attempting to qualify under this definition must manage at least two tiers of staff or professionals. Under this definition, a first-line supervisor is not a manager because of the supervisory duties, unless the supervised employees are professionals.

Because the manager derives eligibility from the supervision of others, it requires that a manager must have authority to execute or recommend personnel actions. Also, a manager must exercise discretion over day-to-day operations of the function, activity or component for which he or she is responsible.

2) The function manager: A person who manages a function or component but does not have qualifying staff responsibilities must manage an "essential function". Direct management of employees is not required, if an alien manages an "essential function" of the organization. Here, the term "essential function" generally means a function that is important to achieve the company's goals. Because a function manager may not have authority to execute personnel actions, the manager must operate at a senior level within the company.

A functional manager does not primarily perform tasks required in the production of a product or in the delivery of a service. Same as the staff-managing manager, a function manager must also have discretion over the day-to-day operations of the function. Factors that may support functional manager status include:

• providing coordination and guidance to other managers;

• having responsibility over assets or sales with a large dollar value; 

• directing the work of subcontracted firms.

In one EB-1C petition case, USCIS held that a chef of a food service company could not qualify as a "functional manager" for EB-1C Multinational Manager or Executive petition. The EB-1C petitioner assumed that managing food service is an "essential function" for the alien beneficiary, but the petitioner failed to establish that managing food service in one store qualifies as "managing an essential function, department, subdivision, or component of the organization as a whole."

7. The Supervisor's Qualification for EB1 Multinational Executive or Manager Green Card Application

For EB1 Multinational Executive or Manager immigration application (EB-1C), a supervisor below the level of middle management is often called a first-line supervisor. The first-line supervisor is not normally considered a manager for EB-1C qualifying purposes. But an exception may exist if the employees being supervised by the alien supervisor are themselves professionals with university degrees.

Under the immigration laws, for an alien employee's job to be considered managerial, all four of the below criteria must be met:

1) manages the organization, or a department, subdivision, function, or component;

2) supervises and controls the work of other employees in supervisory, professional, or managerial positions, or manages an essential function of the organization;

3) be authorized to hire and fire the persons supervised, or if none are supervised, works at a senior level within the organization; and

4) be authorized to make decisions concerning day-to-day operations of the activities or functions of the organization over which the manager has authority.

8. Consideration of Single-Person Office or Self-Employed Person

For EB1 Multinational Executives and Managers petition, a single-person office is not precluded from being classified as a multinational manager or executive, if the required corporate affiliation exists and all other EB-1C requirements can be met.

But it could be difficult for a petitioner to establish that the sole employee will be engaged primarily in a managerial or executive capacity. While a sole employee or self-employed alien may have some managerial or executive duties, the alien will normally spend the majority of work time doing the day-to-day work of the business to keep the business running.

9. Employer's Ability to Pay for EB1 Multinational Executive or Manager Petition

The employer's "ability to pay" is a requirement for the employer filing an Form I-140 immigrant petition. The petition should  demonstrate that the U.S. employer has sufficient money to pay the offered wage for the alien applicant with the permanent of full-time position within the company. To approve an Form I-140 petition, the USCIS requires proof of the company's ability to pay the offered wage.

For EB1 Multinational Executive or Manager Green Card application (EB-1C), if the required initial evidence does not establish ability to pay, the USCIS adjudicator may send a Request For Evidence (RFE) notice to the petitioner for more evidence, or even deny the EB-1C petition since the petitioner has not met the burden to establish eligibility for the requested benefit.

Normally, net income and net current assets do not always accurately reflect the financial health of an organization or the employer. Therefore, according to these calculations, it may appear that the petitioner has not demonstrated an ability to pay. Thus, the use of additional financial information and different evidence may be able to demonstrate the employer's ability to pay.

The USCIS adjudicator can consider additional financial information, such as profit/loss statements, bank account records, or personnel records, but he or she may choose not to accept such information or different calculations. But it is wise to provide all financial information that may show ability to pay and to clearly explain how additional evidence other than net income and net current assets demonstrate the ability to pay.

The petitioner can have its financial officers and accountants perform such calculations in order to show that the company is able to pay the beneficiary.  Statements from the petitioner’s financial officers clearly explaining the analysis and how it proves ability to pay should then be included with the EB1 Multinational Executive or Manager Green Card application.

USCIS will deny the Form I-140 petition if the employer is failed to establish the ability to pay the offered wages. If your petition is denied due to this reason, the petitioner can file a motion to reopen the case, and try to obtain the I-140 approval if there is new evidence. The following issues may indicate the employer's failure to establish the ability to pay the offered wages:

1) the employer's years of a negative revenue;
2) the employer's financial fluctuations were unusual, and reflect the overall ability of the company to meet its wage obligations;
3) the employer has an unusual set of setbacks in business and income;
4) the employer has a serious other conditions in the business.

10. How USCIS Evaluating the Managerial or Executive Status

When reviewing the executive or managerial capacity of the alien beneficiary, the USCIS adjudicator will examine the petitioner's description of the job duties, and will check specifics to evaluate whether an alien beneficiary's duties are primarily executive or managerial. Only repeating the regulation language in EB1 Multinational Executives and Managers classification will not satisfy the petitioner's burden of proof.

If an alien beneficiary performs non-managerial administrative or operational duties, the EB-1C petition should describe the alien beneficiary's job duties to show what proportion is managerial, and what proportion is non-managerial. A alien beneficiary that primarily performs non-managerial or non-executive duties will not qualify the EB1 Multinational Executives and Managers classification.

USCIS adjudicators will also review the totality of the evidence submitted with the EB1 Multinational Executives and Managers petition, such as the descriptions of the alien beneficiary's subordinate employees, the employer's business, the remuneration of other employees, and the alien beneficiary's actual role in the business.

For EB1 Multinational Executives and Managers petition, the submitted evidence should establish that the alien beneficiary's duties are correspond to the organization's structural hierarchy. Therefore, any artificial tiers of subordinate employees and inflated job titles are not probative for the EB-1B petition.

For a small company, USCIS adjudicators may request a further description of the overall management and executive personnel structure, to support the company's position descriptions for the managers or executives. For a large company, USCIS adjudicators may request description for the organizational unit where the alien beneficiary is to be employed.

When evaluating whether an alien beneficiary's job capacity is primarily executive, managerial, or non-managerial, USCIS adjudicators will consider the reasonable business needs for the overall purpose and stage of business development. USCIS holds that it is the petitioner’s burden to demonstrate the company’s reasonable needs for organization’s structure and the staff structure, and USCIS will not accept the unsupported view of "common business practice" or "standard business logic" for the reasonable needs of business.

 

 

 


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